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February 25, 2005

Sixth Circuit addresses retroactivity

Continuing to provide a daily supply of Booker rulings, the Sixth Circuit today in Humphress v. US, No. 03-5951 (6th Cir. Feb 25, 2005) (available here), issued its first opinion on retroactivity.  The Sixth Circuit in Humphress holds that Booker "does not apply retroactively to cases already final on direct review."  As has been common in many such rulings, the Sixth Circuit relies heavily on the death penalty case Schriro, which concluded Ring was not retroactive. "Schriro's reasoning applies with equal force to Booker," says the Sixth Circuit (although the court does not directly confront the fact that Schriro did not deal with the burden of proof issues, as detailed here).

The Sixth Circuit also had another (unpublished) plain error ruling today with US v. Cook, No. 02-1405 (6th Cir. Feb. 25, 2005) (available here).  As is the Sixth Circuit's recent pattern, in Cook the court finds plain error and orders a remand for resentencing based on Booker.

February 25, 2005 at 09:59 AM | Permalink


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» Sixth Circuit: Booker is Not Retroactive from TalkLeft: The Politics of Crime
One of the big issues with applying the Supreme Court's opinion in Booker and FanFan is whether it is retroactive and applies to cases that are no longer on direct appeal or review. Today the Sixth Circuit joins the Seventh... [Read More]

Tracked on Feb 25, 2005 4:30:46 PM


It is truly sad that the circuits are not
not heeding the sound thought of J. O'Conner
in her Blakely dissent. There, she claimed
that cases that were decided after Apprendi
would still be open to review. All this in
spite of the language in Schriro, Ring, and
Apprendi itself.

I truly believe the lack of discretion to
most current judges had had is still giving
them trouble in forging past prosecutorial
objections. The younger judges, if they are
indeed really younger, apprently don't want to
stick their necks out and be criticized.

Posted by: George | Mar 7, 2005 5:47:59 PM

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